Due Process Clause:The Fourteenth
Amendment reads, in part, that no state shall “deprive
any person of life, liberty, or property, without due process of law.”
This applies to the states and to local governments. The Due Process
Clause of the Fifth
Amendment applies to the federal government. Most Due Process issues
involve state laws.

Common-Law:The two sources of law are statutory law and
common law. The common law is that body of rules and principles developed
through the courts over time. While legislatures often overrule an area
of common law by enacting a statute, and while courts often overrule
an area of common law by refusing to follow it further or by handing
down a decision which makes use of a competing principle, the common
law carries with it the force of law and is generally binding on courts
within that jurisdiction.

Burden of Proof:In every case one party or another has the onus
of demonstrating the truth of some fact or another. The party who must
so demonstrate is said to have the burden of proof.
In addition to who carries the burden, the burden can be of different
loads. For example, in a criminal case the prosecution carries the burden
of proof and must prove every element of the crime “beyond a reasonable
doubt.” In most civil cases the plaintiff generally carries the
burden of proof but must prove every element of her claim only by “a
preponderance of the evidence,” which is far short of “beyond
a reasonable doubt.”

Every Due Process Clause analysis begins with the
question “Has the government deprived some person of life, liberty,
or property?” If there has been no government action, or if there
has been no deprivation, then there cannot be a Due Process issue; substantive
or procedural.

Substantive Due Process issues involve the states’
power to regulate certain activities.

Procedural Due Process issues involve an analysis of
the procedure required by the Constitution when states seek to deprive
people of life, liberty or property. (Procedural Due Process will be
addressed in Subchapter 3.)

EXAMPLE: Westernstate
passes a law forbidding individuals from using nail clippers to cut
their nails and requiring instead that only scissors be used. Because
the state is seeking to regulate individuals in a way which affects
their liberty, the law will be subject to Due Process review.

EXAMPLE: Easternstate
enacts a statute requiring all individuals who own cars manufactured
prior to 1990 pay a “collector’s” tax. The tax is
a deprivation of property, i.e., the money paid, and must pass Due Process
review.

If there is a governmental deprivation falling under
the Due Process Clause, we will need to continue the analysis and inquire
as to the nature of the right involved in order to perform a substantive
due process analysis. But before getting to that point it is
crucial to understand what "government action" means in this
context.

In Shelley
v. Kramer, 334 U.S. 1,14 (1948), the Court noted that“the
action inhibited by the first section of the Fourteenth Amendment is
only such action as may fairly be said to be that of the States. That
Amendment erects no shield against merely private conduct, however discriminatory
or wrongful” .

The Court made clear that state action through its
legislative, executive, or judicial authorities qualifies. Furthermore,
the Court pointed out that judicial enforcement of common-law rules
satisfies the government action requirement of the Fourteenth Amendment,
as does any other official judicial action.

EXAMPLE: Joe and
Bob enter into an agreement for the sale of a car. Joe takes the car
from Bob and promises to pay the following week. Before paying Bob,
Joe gets drunk and crashes the car. He now he refuses to pay Bob for
what he terms "that smashed up piece of junk". When Bob brings
Joe to court, the judge’s decision to enforce the contract and
make Joe pay the agreed contract price constitutes government action
for Fourteenth Amendment purposes.

It is not only “official” state action
that qualifies for Due Process purposes. If “there is a sufficiently
close nexus between the State and the challenged action of the regulated
entity…the action of the latter may be fairly treated as that
of the State itself.” Jackson
v. Metropolitan Edison Co, 419 U.S. 345, 351 (1974), citing Moose
Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).

So the behavior of non-government actors may be imputed
on the government for Fourteenth Amendment purposes, if there is a “sufficiently
close nexus.” What is “sufficiently close?” The mere
fact that a business is subject to regulation is insufficient in itself
to make the business’ action “government” action.
Even extensive and detailed regulation, such as in the case of public
utilities, is in itself insufficient, although a government-granted
monopoly along with other factors could change that conclusion. See
Moose
Lodge. Most recently, in March, 2003, the Court held that subjecting
a plan to a city’s “referendum process, regardless of whether
that ordinance reflected an administrative or legislative decision,
did not constitute per se arbitrary government conduct in violation
of due process.” City
of Cuyahoga Falls v. Buckeye County Hope Fund, 123 S. Ct. 1389, 1396
(2003) (voters’ decision not imputed on the government).

Whether the nexus is sufficiently close is necessarily
a factual question which must be answered based on the totality of the
circumstances. However, it is clear that not just any relationship between
the government and a private entity will do. As the Court noted in Blum
v. Yaretsky, 457 U.S. 991, 1004 (1982), “although
the factual setting of each case will be significant, our precedents
indicate that a State normally can be held responsible for a private
decision only when it has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the choice must
in law be deemed to be that of the State.” Citing Flagg
Bros., Inc. v. Brooks 436 U.S. 149, 166 (1978).

EXAMPLE: The city
of Milton grants an exclusive contract to Stuckie’s Sticklers
to patrol city streets and issue parking infraction citations. All Sticklers’
employees are put through a city training program and they punch in
and out on city time clocks along with various municipal employees.
This traditionally public function performed by a private entity in
this manner might well constitute a “sufficiently close nexus”
to make Stuckie’s Sticklers’ acts "government action"
for Due Process purposes.

EXAMPLE: The city
of Dalton has an open bidding process by which it selects the electricity
providers for city residents every 5 years. Three providers are selected
based on their bids, and their information is passed along to residents
who then individually select their own provider. This year, Ed’s
Electric was one of the winners with the lowest bid and an adequate
showing of safety and reliability. In a suit against Ed’s Electric,
a Dalton resident would have a difficult time imputing Ed’s actions
on the city for Due Process purposes.

Once we have established that the government action
requirement has been met, we must consider whether there has been an
interference with individual rights which rises to the level of an unconstitutional
deprivation. Here begins the true substantive due process analysis.
Courts have split substantive due process cases into two categories:
those involving fundamental rights and those involving
non-fundamental rights. (Non-fundamental rights are
addressed in Subchapter 2.) The standard of scrutiny is different for
each category, but the essential analytical method is the same.

FUNDAMENTAL RIGHTS

Fundamental rights are those which bear some
relation to the right of autonomy or the right
of privacy. The rights in this category are also sometimes
referred to collectively as liberty interests. The
list includes, but is not limited to, the following rights:

The right to marry, and the right to procreate

The right to purchase and use birth control

The right to custody of one’s own children
and to raise them as one sees fit

The right to refuse medical treatment

The right to freedom of speech

The right to travel freely among the states

The right the vote

The right to freedom of association

The right to freedom of religion

Simply because the government is depriving individuals
of one of these fundamental rights, or interfering with the free exercise
thereof, does not necessarily mean the government action is forbidden
by the Due Process Clause. Rather, it means that unless it is necessary
for the government to interfere with the right in order to achieve some
compelling governmental objective the action will be prohibited.
But if it is necessary for a compelling objective, there is
no substantive due process violation.

This is called the strict scrutiny standard.
When an individual brings a Due Process claim against a state claiming
interference with a fundamental right, it is the state’s responsibility
to demonstrate the compelling nature of its interest and the necessity
of the chosen means. In other words, the state, and not the plaintiff,
carries the burden of proof when the strict scrutiny standard is applied.
As the Court stated in Bowers
v. Hardwick, 478 U.S. 186, 189 (1986),
“to prevail, the State would have to prove that the statute is
supported by a compelling interest and is the most narrowly drawn means
of achieving that end.”

EXAMPLE: Massahampshire
passes a law banning the use of certain forms of birth control. These
forms of birth control, the state believes, have contributed to an increase
in sexually transmitted diseases because they protect against pregnancy
but not STDs. Since STDs have a high social cost, this is a compelling
state interest, says the Massahampshire legislature. If a citizen brings
a substantive due process challenge to the law, the state must show
that their interest in slowing the spread of STDs is indeed compelling
and that an outright ban on the specified forms of contraception is
necessary to achieve the goal as there is no alternative means available.

The first modern case in which the court examined
state regulation in the area of a fundamental right was Griswold
v. Connecticut, 381 U.S. 479 (1965)(see also discussion of judicial
activism in Chapter1,
Subchapter
"Judicial Powers"). Connecticut General Statutes §
52-32 provided that "Any person who uses any drug, medicinal article
or instrument for the purpose of preventing conception shall be fined…or
imprisoned” or both. The Court found that there is a penumbral
area around the Fourth Amendment right to privacy, and other portions
of the Bill of Rights. Griswold
at 485. This penumbra of privacy was violated by the Connecticut
statute, according to the Court. Since a fundamental right was
violated by the Connecticut statute without a compelling justification,
the statute was struck down.

You will note that the right to have an abortion
is not listed among the fundamental rights above. This is not an oversight.
Although Roe
v. Wade, 410 U.S. 113 (1973) established abortion as a fundamental
right, the Court partially overruled Roe v. Wade in Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
In Casey, the Court held that states may restrict the availability
of abortions so long as the restrictions do not place an “undue
burden”
on the woman’s right to choose. The status of abortion rights
is therefore somewhere between that of a fundamental right and non-fundamental
right, which is a unique niche for purposes of due process analysis.

For those privacy and autonomy rights which fall squarely
within the Court’s definition of fundamental, the following chart
is helpful in applying the strict scrutiny standard.

In Zablocki
v. Redhail, 434 U.S. 374, 389 (1978) the Court emphasized that “When
a statutory classification significantly interferes with the exercise
of a fundamental right, it cannot be upheld unless it is supported by
sufficiently important state interests and is closely tailored to effectuate
only those interests. (Emphasis added.)"

The state goal in Zablocki was to ensure that persons
with a legal obligation to financially support children not in their
custody received the opportunity for counseling before marrying in an
effort to protect the welfare of the out-of-custody child. The Court
agreed that these were “legitimate and substantial interests”
but that the means chosen for achieving the interests “unnecessarily
impinge on the right to marry” and the statute was therefore invalidated.
Zablocki at 389.

So while the interests here were “legitimate
and substantial”, they appear to be something short of compelling.
A city’s interest in reducing juvenile crime and victimization,
however, may be compelling for due process purposes. See Nunez
v. City of San Diego, 114 F.3d 935 (9th Cir. 1997) (ordinance violating
substantive due process right to rear one’s children not narrowly
tailored to the compelling state interest). A few years before Nunez,
the Fifth Circuit Court of Appeals in
Qutb v. Strauss, 11 F.3d 488, 493 (5th Cir. 1993) held that the
statute in that case which was intended to “reduce juvenile crime
and victimization, while promoting juvenile safety and well-being”
was narrowly tailored to meet a compelling state interest. Compare Ramos
v. Town of Vernon, 331 F.3d 315 (2d Cir. 2003) (intermediate scrutiny
standard applied). Although many of these cases were decided on Equal
Protection grounds (see Chapter 4), the extent to which a government
interest is or is not “compelling” is not affected by the
cases’ postures.

EXAMPLE: In order
to limit the number of illegal weapons on the street brought in from
other states, Massahampshire legislature passes a law requiring that
all cars entering the state be subject to a full weapons search. Because
this interferes with the fundamental right to travel freely the law
will be subject to the strict scrutiny standard. Applying the analysis,
the interest is likely compelling, but the means of achieving the interest
are not narrowly drawn and the law would probably be struck down as
a substantive due process violation.

EXAMPLE: In order
to limit the number of illegal weapons brought into city schools New
York institutes a policy of random searches of all students. Any student
found to be in possession of an illegal weapon will be immediately expelled.
Because the right to education is not a fundamental right, this law
will not be subject to strict scrutiny. (See Subchapter 2).

EXAMPLE: Florida
has made efforts to prevent voter fraud. In part, the state legislature
has passed a law requiring that all persons must present at least one
valid form of state identification (such as a driver’s license
or a state I.D.), an original social security card, and at least one
piece of mail received by that person at the address listed on their
voter registration card. While the right to vote is fundamental and
interference thereof will require applying the strict scrutiny standard,
this law is likely to pass muster. The interest in avoiding voter fraud
is certainly compelling, and the means chosen to achieve this objective
seem narrowly tailored to that end.